(I am grateful for links to these documents from Kathleen Perrin, and for an update from California attorney Rick Xiao.)

Judge Vaughn Walker has been trying to resolve an ongoing discovery dispute in the Perry case that has already lasted longer than the trial. The dispute originates with two discovery orders in March. Magistrate Judge Joseph Spero ordered several No on 8 groups - including Equality California and the ACLU - to produce documents that Prop. 8 proponents ("Proponents") demanded. The groups objected, but Walker sustained Spero's ruling. The orders require the Equality California and the ACLU to produce private communications on campaign strategy and messaging that member individuals exchanged among the themselves and their counterparts in organizations belonging to the No on 8 - Equality For All coalition. The No on 8 groups appealed the orders by Judges Spero and Walker, claiming a First Amendment privilege from compelled disclosure of these communications.

In its second discovery ruling in the case, a 9th Circuit panel decided that the No on 8 groups had not met criteria for the Court to review their objections. Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (“Perry II”) As a result, No on 8 groups could not appeal their objections until Judge Walker cited them for contempt over failure to produce the ordered documents.

The Perry II ruling addresses the scope of the First Amendment privilege from compelled disclosure of internal campaign communications. In Perry I, the 9th Circuit panel held that the privilege applies to "communications among the core group of persons engaged in the formulation of campaign strategy and messages.” "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) (emphasis in original). The context then concerned what campaign communications the Proponents - the "core group" - could exempt from discovery. But could they exclude only those communications on campaign strategy or messaging internal to ProtectMarriage.com? The question was not raised at the time, although Proponents reserved, on other grounds, their concerns about First Amendment privilege.

In Perry II, the panel clarified application of the privilege to persons in member organizations of a very different core group - the Equality for All coalition:

Under Perry I, the privilege applies to the core group of persons engaged in the formulation of strategy and messages, whether or not they are members of a single organization or entity. The operative inquiry is whether they are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity. (slip. op., at 9)

Judges Walker and Spero determined that the First Amendment privilege does not extend to internal communications among or between separate organizations that belonged to Equality for All. Given the Perry II clarification, is it clear that the judges erred? The 9th Circuit panel said that it is unclear whether Walker and Spero meant "that the privilege cannot apply to persons who are part of a political association spanning more than one organization or entity."

On April 13th, Judge Walker ordered the Proponents to show cause why the record of evidence should not be closed. Proponents responded that it should not be closed because the No on 8 groups had not complied with the March orders to produce the campaign communications subject to the orders. The No on 8 groups and Proponents had tried to craft a compromise that would allow discovery to proceed. The former would agree to an amendment of Walker's March 22nd order that substantially limited their disclosure obligation to the requirements of the Perry II clarification. Proponents then demanded an "evenhanded" application of that guidance to all of their qualifying campaign documents already entered into the record of evidence, so that they could then ask Walker to remove these documents from the record. The plaintiffs reserved a right to object to Proponents' demand. The compromise fell apart. Proponents recommended that Walker cite the No on 8 groups for contempt. (Prop. 8 and the Right to Marry / Keen News Service)

On April 17th, Walker discharged his April 13th order to allow Proponents and the No on 8 groups time to "confer and negotiate in order to reach a stipulation that will resolve remaining discovery issues." A second round of discussion ensued, but never rose to the level of a real negotiation. Positions instead hardened. The No on 8 groups claimed that "there can be no question" that Walker and Spero had "misapprehended" the scope of their First Amendment privilege. To correct the error, the groups would stipulate to an amended discovery order by Walker that allows them to exclude "communications solely among the core group of persons engaged in the formulation of campaign strategy and messages for the No on 8 - Equality for All campaign, whether or not they are members of a single organization or entity." The No on 8 groups say that Walker should accepts their stipulation, without resolving a related dispute between plaintiffs and Proponents over whether Proponents can revisit Proponents' previous document production.

Proponents would have accepted this stipulation, but only if the proposed amended order allowed them to remove from evidence a large number of their internal campaign communications already in the record of evidence. According to plaintiffs, Proponents would, in fact, have Walker "strike from the trial record virtually every document that they originally tried, unsuccessfully, to shield from discovery."

Plaintiffs responded that they could not accept the latest terms of a reprised compromise. They have asked Walker to order the nonparties, Equality California and the ACLU, to "produce the required documents in three days, or else be held in contempt," and order "Proponents to supplement the trial record within seven days, if at all, upon expiration of the [nonparty] production deadline before the Court closes the evidentiary record."

Plaintiffs have the following objections to the compromise. First, plaintiffs claim that Walker and Spero did not err when they ordered the No on 8 groups to produce campaign communications. Plaintiffs read the March orders as entirely consistent with the subsequent, Perry II clarification. But even if the judges had erred, theirs was not a clear error. Suppose that they had meant that “the [First Amendment] privilege cannot apply to persons who are part of a political association spanning more than one organization or entity.” Perry II, slip op. at 9. Spero had still afforded these groups opportunity to show that their campaign participants functioned as a core group of persons engaged in developing campaign strategy or messaging, so that participant campaign communications could qualify for First Amendment protection. The No on 8 groups did not provide information showing that their individual members functioned as core group of persons, So plaintiffs contend that the groups can not now object that they are entitled to withhold the contested communications.

Second, Proponents want to use the Perry II guidance to reopen discovery orders in January, with a request that Walker remove from evidence many documents Proponents produced. The plaintiffs argue that Walker should reject Proponents' request. Even if the Perry II guidance applies to documents they produced, Proponents failed "to prove and preserve a privilege for any individuals in any organization other than ProtectMarriage.com. Furthermore, Proponents at trial allegedly "conceded that ProtectMarriage.com’s First Amendment privilege did not extend to separate religious organizations" whose members participated in the campaign. (In fact, Proponents said that the religious character of these organizations raised a different question of First Amendment protection.)

Why are plaintiffs concerned about gaps in the record of evidence that would arise if Walker granted Proponents' request? Have a look at the types of documents that Proponents would have removed. My cursory review suggests that the communications at issue were between ProtectMarriage.com and ministers or leaders of religious organizations. Unfortunately, I do not have time to investigate the individual documents, so I can not say whether they stand out for hateful, anti-gay messaging.

What can we expect at this point? Walker might decide that he has no viable option but to issue a contempt citation against Equality California and the ACLU, because he has given them and Proponents reasonable opportunity to resolve their differences. At any rate, expect continued delay in the progress of the case toward closing arguments and a final judgment.

update: Walker has just ordered the ACLU and Equality California to show cause why he should not hold them in contempt for failing to produce documents subject to the March discovery orders. They have until April 27th to submit their written arguments, for a hearing on April 28th. (Keen News Service)

Saturday, April 24, 2010

A Texas appellate court heard oral arguments this week in a same-sex divorce case. Publicly available news coverage conveys a sketchy idea of questions arising under state law and the federal constitution. Mainstream media repeat prepared press statements by attorneys. (AP / UPI / Dallas News / Texas Lawyer Blog / Am Law Daily ) The Dallas Voice affords an outstanding exception to unsatisfactory news reports. (The Texas Lawyer probably does a good job at reporting, but I can not judge, because I do not subscribe to it.) I rely on the briefs to summarize the procedural path to appeal, and to summarize the underlying legal arguments by parties on both sides. The legal issues warrant this level of attention. I also conclude that divorce equality under the constitution unavoidably implicates marriage equality. I may be wrong, of course, so I welcome comment.

On October 1st, a Dallas judge ruled that that her court has jurisdiction to hear a divorce suit by a same-sex couple - identified as J.B. and H.B. - who had married in Massachusetts. Judge Tena Callahan found that the court has the power to divorce the couple, notwithstanding Texas' constitutional and statutory bans on same-sex marriage. To the extent that these bans would deprive the court of this power, she found that they violate the 14th Amendment's guaranty of equal protection. She also rejected a motion to intervene by state Attorney General Greg Abbott, who contended that bans on same-sex marriage limit the court's jurisdiction to voiding the marriage. (Texas Lawyer) The next day, Abbott filed a notice of appeal, seeking relief in the state 5th District Court of Appeals. On December 7th, Judge Callahan issued findings of fact and conclusions of law. (Tab 4, Attorney General's brief) Amending her October 1st order, she further ruled that due process under the 14th Amendment protects the right to divorce of married same-sex couples, and that prohibiting divorce would unduly burden their constitutionally protected freedom of association and right to travel.

The parties to the appeal disagree about whether Texas state law allows same-sex couples to divorce. If the law does not allow same-sex divorce, parties disagree about whether it would violate the federal constitutional protections of same-sex couples, although neither party had raised these constitutional questions. Abbott argues that by banning same-sex marriage state law must also ban same-sex divorce - without violating the U.S. constitution. J.B.'s attorneys argue that the prohibition on same-sex marriage has no bearing on eligibility for divorce, but that if the appellate court addresses the constitutional questions Callahan decided, a divorce prohibition would be unconstitutional.

Abbott failed to convince the appellate court that it could dispose of the case without oral argument, by reversing Callahan's decision and granting the Attorney General's position on the court's jurisdiction. (Attorney General's brief) The proper remedy for the couple, he maintains, involves voidance of the marriage, not divorce, because Texas law applies to couples who reside in the state, and the law does not recognize same-sex marriage, even if laws of other states do. And while neither party asked Callahan to rule on federal constitutional protections, Baker v. Nelson 409 U.S. 810 (1972) still has binding effect. In Baker, the U.S. Supreme Court upheld a decision by the Minnesota Supreme Court that excluding same-sex couples from marriage does not violate due process and equal protection under the 14th Amendment. Baker applies to this case, because "divorce is the enforcement mechanism for marriage," so that if it is not unconstitutional to ban same-sex marriage, it can not be unconstitutional to void, rather than divorce, a same-sex couple. Abbott also claims that Texas law does not restrict J.B.'s freedom of association or right to travel: "it simply refuses to extend legal enforcement to the promises and commitments outside the legal institution of marriage." Finally, he claims that Callahan's decision implicitly violates section 2 of the federal DOMA. On his account, section 2 reinforces Texas' right, under the Full Faith and Credit Clause of the constitution, not to give "legal effect" to same-sex marriages through divorce.

(The Liberty Institute also filed a brief supporting the Attorney General, and participated in the oral argument.)

In their brief, attorneys for J.B. explain why the appellate court "need not hold that Texas' same-sex marriage policy is unconstitutional to affirm the trial court's exercise of subject matter jurisdiction in this case, despite the [Attorney General's] unfounded, and wholly politically motivated, arguments to the contrary." A divorce proceeding for J.B. and H.B. would not mean that the state recognizes the marriage policies of other states as its own. Granting a divorce would represent noting the validity of a same-sex marriage "under the laws where it was formed," rather than a judgment that the marriage was valid in Texas.

If the appellate court reaches the constitutional questions of Callahan's decision, J.B.'s attorneys argue that Baker does not have binding effect, because Baker concerned marriage, not divorce, and courts have distinguished the fundamental "liberty interests" in each. The summary nature of the Baker ruling, and case law since 1972, undermines the extent of deference it can receive. In addition, the most stringent test of constitutional review would apply to this case: the state must have a compelling reason not to allow same-sex couples to divorce. Under this "strict scrutiny" test, the federal constitution does not allow the state to bar a divorce proceeding for same-sex couple on the basis of sexual orientation, and guarantees such couples a right to divorce. The core of J.B.'s equal-protection argument is that voidance does not provide same-sex couples an adequate substitute for divorce, and that depriving them of means to divorce stigamtizes them. The state can identify no legitimate interest in imposing that kind of burden on same-sex couples who want divorces.

J.B.'s attorneys also argue that if Texas court can not divorce same-sex couples, the state would unconstitutionally infringe on J.B.'s right to travel. A divorce prohibition has no other purpose than to penalize married same-sex couples for moving to Texas, because it does not apply to married, opposite-sex couples. A divorce prohibition would also create "an atmosphere of hostility to their lawful unions designed to dissuade them from relocating to Texas, in circumstances whether they might otherwise consider moving here."

J.B.'s attorneys answer Abbott's argument that Callahan's decision implicity violates the federal DOMA. They say that the federal DOMA has no bearing on the constitutional right to divorce, or on equal protection of the law in access to divorce proceedings.

Whatever the merits of Abbott's constitutional arguments, they reflect more than the influence of "political motivation." Suppose the appellate court decides the case on constitutional grounds, and rules that equal protection and due process require Texas courts to hear same-sex divorce suits. While the right to divorce and the right to marry involve distinguishable constitutional interests, constitutional arguments for the right of same-sex couples to divorce would have the same force on their right to marry. I do not see how these arguments can be circumscribed. More importantly, neither does Abbott.

Sunday, April 18, 2010

Angelique Naylor told Newsweek that in appealing her divorce decree, Texas Attorney General Greg Abbott has pursued a "politically motivated attack and attempt to wear me down financially by running up my legal bills." (Newsweek) She also states that the appeal is "is an egregious misuse of state resources when there is already an almost identical case already set for a hearing in the 5th court of appeals next week." The other case on appeal is In the Matter of the Marriage of J.B. and H.B. (Texas Lawyer Blog)

(04/20-21/10 update: AP has a report on the appeal in Naylor's divorce case, but fails to distinguish substantive and procedural issues in the two cases. Commenting on the article, law professor Tobias Barrington Wolffobserves that even if Naylor or her spouse could relocate to Massachusetts and divorce there, the federal DOMA would allow Texas to "disregard the divorce decree of a same-sex couple altogether.")

(I wish to thank a kind reader of this site for forwarding the referenced filings.)

On April 13th, Judge Walker ordered Prop. 8 proponents in the Perry case to show cause why the record of evidence should not be closed, and he set an April 16th deadline for them to do so. In their response, they contend that the Court must keep the record open because No-on-8 groups - including Equality California and the ACLU - failed to produce documents that two discovery orders in March required them to produce.

The orders apply to a category of nonpublic, campaign communications that individuals within Equality California and the ACLU exchanged with coalition partners of the Equality for All Campaign. The only private communications subject to the orders concern formulations of No-on-8 campaign strategy and messaging. The orders further limit document production to private communications that the No-on-8 groups exchanged; it excepts communications internal to each of the organizations.

The No-on-8 groups lost their appeal of the March discovery orders. (Prop. 8 and the Right to Marry) They had claimed that the documents the orders compelled them to disclose were not relevant to identifying or clarifying the intent of voters who approved Prop. 8. At Courage Campaign's Prop. 8 Trial Tracker, Brian Leubitz says that the issue of relevancy has been "the focus" of objections by Equality California and the ACLU. However, the central issue of concern involves the extent to which the First Amendment protects certain campaign communications from compelled disclosure.

In fact, the No-on-8 groups also claimed that Judges Walker and Spero clearly misinterpreted a previous appellate holding on the scope of First Amendment privilege from compelled disclosure. In January, a 9th Circuit panel had held that "the First Amendment privilege is ... limited to [internal, private] communications among the core group of persons engaged in the formulation of campaign strategy and messages." "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010). At the time, this holding protected from discovery the internal campaign communications of individuals within a "core group" - the ProtectMarriage / Yes-on-8 campaign of the official Proponents. In his March 5th discovery order, Magistrate Judge Joseph Spero applied the holding to document production in a different context - to a category of campaign communications that Proponents seek from the No-on-8 groups. On March 22nd, Judge Walker sustained Spero's order against objections by the No-on-8 groups, and required them to complete a "rolling production" of the relevant documents by March 31st.

The same 9th Circuit panel in Perry I issued a stay of the March discovery orders until it dismissed the appeal on April 12th. The panel decided that its prior First Amendment holding does not preclude a First Amendment privilege for private communications on campaign strategy and messaging, exchanged among a "core group of associated persons spanning more than one [campaign] entity." "The operative inquiry," the panel said, "is whether they are part of an association subject to First Amendment protection." (italics in the original) Walker and Spero had not clearly erred in this matter because the N0-on-8 groups never provided information to show that it was the function of their organizations to associate in a coalition. Because Walker and Spero had not clearly erred (and for other reasons), the panel concluded that the 9th Circuit Court lacked mandamus jurisdiction to hear the appeal. The No-on-8 groups could not seek relief until they failed to produce the required documents and Judge Walker cited them for contempt.

Proponents now seek an order of contempt against Equality California and the ACLU for their continuing failure to produce documents subject to the March discovery orders. The March 22nd order required Proponents to assess the document production and determine, by April 12th, which documents would be relevant to enter into the case's evidentiary record. Having received no documents, Proponents contend that the evidentiary record must remain open until the No-on-8 groups produce the documents.

Proponents also acknowledge that the No-on-8 groups offered a "compromise proposal" to end the discovery dispute. The groups expressed a willingness to comply with an amended discovery order. What amended order would satisfy them? Judge Walker would have to rule that their exchanged campaign communications qualify for First Amendment protection under the latest guidance of the 9th Circuit panel. Proponents countered, saying that they would accept the compromise proposal, but only if Walker "evenhandedly" applied the guidance to "the Court’s prior discovery and evidentiary rulings with respect to Proponents’ claims of privilege." In other words, Proponents would want Judge Walker to revisit his pre-trial discovery orders, so that the Proponents could exclude from the record of evidence any private campaign communications on strategy or messaging that Proponents exchanged with allied organizations.

As matters now stand, the No-on-8 groups have filed no motion to set out their compromise proposal. If the groups do file that motion, the Perry plaintiffs say that plaintiffs "reserve the right to weigh in with the district court regarding the content of" an amended order." (Exhibit H) Moreover, whatever the groups do, Proponents plan to file a motion asking that Walker revisit his pre-trial discovery orders: "If the No-on-8 Groups do come forward with a motion for further relief, then Proponents will promptly respond so that the issue can be considered in tandem with Proponents’ own forthcoming motion for similar relief consistent with the Ninth Circuit’s further guidance."

So Proponents are using the discovery position of the No-on-8 groups to outmaneuver the plaintiffs on what campaign communications will ultimately remain in the case's record of evidence. Proponents hope to expand the discovery dispute, but I am convinced that they are not simply manufacturing a pretext to delay closing arguments and final judgment by Walker. They defend the idea that the content of private campaign speech, rather "core group" membership, must determine the scope of First Amendment privilege. (Prop. 8 and the Right to Marry) I find their defense not just plausible, but compelling, and they are pursuing it through a U.S. Supreme Court petition now on hold. (Prop. 8 and the Right to Marry) Law professor Nan Hunter faults the petition as "weak," but on grounds that do not convince me. If anyone has followed me this far (!), I would welcome comment on why I am wrong.

Friday, April 16, 2010

In Cole v. Arkansas, plaintiffs challenged the constitutionality of an Arkansas statute that bans adoption and foster-care by unmarried couples. The judge in the case has just ruled that the law "infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas." (Arkansas News Bureau) JURIST links to the ruling and reports on the litigation that led to it.

In a memorandum, President Obama has directed the Department of Health and Human Services to draft rules allowing hospital patents to designate visitors, and to afford the visitors at least the same level of access as immediate family members. The rules would apply to all hospitals that participate in Medicare or Medicaid. Members of LGBT families would be among designated visitors guaranteed equal protection of visitation privileges. The rules would also require the hospitals to have policies for honoring patient designation of medical powers of attorney when patients are, or become, incapacitated. (NY Times / LA Times / Washington Post / LGBT POV)

Law professor John Culhane has a predictably perceptive insight on what President Obama has accomplished. Having argued over a decade for marriage equality, he understands that marriage equality would do much more to remedy problems of discrimination against same-sex couples. But "read the Memorandum closely," he urges, "and you’ll see that the requested change goes far beyond marriage equality: The idea is to allow people to designate the person of their choice (either “on the spot” or through advance directives) to visit them in the hospital ... That respect for individual autonomy and decision-making in the most challenging circumstances is the great accomplishment of this Memorandum, and it shouldn’t go unacknowledged." (WordinEdgewise)

Mainstream media have represented the LGBT community as divided on the importance of Obama's memorandum. (Washington Post) The news has had a welcome reception among several advocacy organizations, including GLAAD, Lamda Legal, the National Gay and Lesbian Task Force, and the Human Rights Campaign. HRC Vice President David Smith called the development "a huge deal." (NY Times) This view has support in the tragic circumstances of an LGBT family that led to a lawsuit filed by Lamda Legal and an apology by President Obama. (The Miami Herald reports on what happened to that family and the subsequent lawsuit.)

While praising the decision, other advocates of marriage equality reserve criticism about what it falls short of. "[T]he dynamic leaves" Andrew Sullivan "queasy." (Daily Dish) Marriage Equality New York asks its supporters to share their appreciation with the President, but to also let him know "that we expect more from the White House on marriage equality." (MENY Marriage News) "It's not full equality, but it's something," says Maia Spotts of GayRightsChange.org. "[D]oes HRC really think this is a huge deal," asks blogger John Aravosis, "or are they simply, yet again, working for the President rather than working for the community?"

The memorandum already has opponents. Peter Sprigg, a senior fellow for policy studies at Family Research Council, questions the President's political motivations, even though he does not reject the proposed benefits for LGBT families. (Washington Post) Pretending to separate intent from outcome, Sprigg said that the memorandum must be taken in its "political context." In that context, he claims, it "clearly constitutes pandering to a radical special interest group. The memorandum undermines the definition of marriage, and furthers a big-government federal takeover of even the smallest details of the nation's healthcare system." (LA Times)

As a result of the federal DOMA, it is clear "that the Social Security system is unfair to same-sex couples," says Michael McGough, of the LA Times, in his post on a proposal of legislation to remedy the unfairness. (Opinion L.A.)

Developments abroad

On April 14th, Italy's Constitutional Court rejected a challenge to the constitutionality of the country's ban on same-sex marriage. (JURIST / Bloomberg News)

In Argentina, a family court judge has "determined that what was the first ever same-sex marriage in all of Latin America is 'non-existent" under the constitution and has, in fact, annulled it ... That leaves Martin Canevaro and Carlos Alvarez and Norman Castillo and Ramona Arevalo as the only two same-sex couples in Argentina with unrevoked marriage equality rulings." (Blalbbeando)

Wednesday, April 14, 2010

(I owe a special thanks to site collaborator and California attorney Rick Xiao for alerting me to the filing and forwarding it.)

Yesterday, California public employees and their same-sex spouses brought a class action lawsuit against the IRS and the California Public Employees Retirement System (CalPERS). Under state and federal laws, state employees can not enroll their same-sex spouses and domestic partners in the CalPERS Long Term Care (LTC) program. Plaintiff couples want the U.S. District Court to declare that the laws are unconsitutional, and they want to bar the state government from continuing its exclusion of all other same-sex couples in the same situation.

Section 3 of the federal DOMA (codified at 1 U.S.C. § 7) limits federal definitions of "marriage" and "spouse" to the " legal union between one man and one woman as husband and wife." Under the Internal Revenue Code (26 U.S.C. §7702B(f)1-2), state government employers may qualify for tax-sheltered treatment of their long term care programs. But "qualified" plans must adhere to the federal definition of spouses. To retain LTC's federally tax-sheltered status, CalPERS by law (Cal. Fam. Code §297.5(g)) follows the federal definition and excludes same-sex spouses and domestic partners of state employees. Because the applicable state and federal laws conform to this federal definition, state employees can not enroll their same-sex spouses and domestic partners in the CalPERS Long Term Care (LTC) program. As a result, their employer deprives these couples access to a vital benefit that protects them and the public interest. Plaintiff couples seek a declaration that the federal and state laws at issue violate due process to excluded couples under the 5th and 14th Amendments, and equal protection under the 14th Amendment. They also seek injunctive relief.

Dragovich v. U.S. Dept. Treasury now joins several other prominent legal challenges (here and here) to the federal DOMA. AP covers the case here.

(Special thanks to site collaborator Rick Xiao for alerting me to the first two filings.)

Comment

Yesterday a 9th Circuit panel dismissed the appeal of the latest discovery order in the Perry case. California Equality, the ACLU, and other No on 8 groups brought the appeal because they claimed that the order would compel them to disclose private campaign communications protected under the First Amendment. (AP) A key issue in the appeal concerns a prior holding ("footnote 12") by the panel on an appeal by Prop. 8 proponents of a previous discovery order in the case. Perry v. Schwarzenegger, 591 F.3d 1147, 1165 n.12 (9th Cir. 2010) The panel held that "the First Amendment privilege is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Appellants and appellees argued that Judges Walker and Spero clearly erred when they interpreted this instruction to mean that the First Amendment privilege does not protect individuals outside the "core group" from compelled disclosure of their campaign communications. Appellants maintained that the judges had not properly examined the function of the privilege - to protect the "associational interests" of individuals who belong to the No on 8 groups, and who formulated campaign strategy and messages.

[04/15/10 update: Brian Leubitz, of Courage Campaign's Prop. 8 Trial Tracker, claims that appellants focus "on relevancy rather than any notion of privilege of free communication within a campaign." Read their brief to see if that's an accurate representation. I don't think that it is.]

Appellees - the Prop. 8 proponents - went even further, questioning not just the application, but the validity of the holding ("the vailidity issue"). They argued that the First Amendment privilege protects individuals not according to their rank or status within campaign associations, but according to the content of their political speech. In yesterday's order of dismissal, the 9th Circuit panel did not reach this question of their prior holding's validity. Instead they clarified the scope of footnote 12's application:

"The operative inquiry is whether [individual members of campaign organizations who formulate campaign strategy and messages] are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity."

Will that clarification satisfy the Prop. 8 proponents? They have reserved the "validity issue" for consideration by the U.S. Supreme Court. (See the referenced petition above, and Hunter's comment that "it's a weak cert petition that the Court will probably deny.")

Finally, notwithstanding these developments, Judge Walker today issued an order to show cause why the evidentiary record in the case should not be closed. Parties in the Perry case have until April 16th to respond. Walker clearly wants to remove another cause of delay to closing arguments and a final judgment.

Monday, April 12, 2010

Maryland Delegate Don Dwyer "tried to attach an amendment prohibiting same-sex marriages onto a bill that would increase marriage license fees in Baltimore city." Dwyer recently failed in his attempt to impeach state Attorney General Doug Gansler for issuing an opinion upholding state recognition of out-of-state, same-sex marriages." (Baltimore Sun, cross-posted by ADF Alliance Alert) Dwyer has a history of generating controversy. He wanted to impeach Judge Brooke Murdock after she ruled Maryland's ban on same-sex marriage was unconstitutional."

Same-sex couples married in Vermont can expect to face an additional burden when filing their taxes. "The complication adds about two or three more hours to file a tax return, compared to a heterosexual couple’s return - and at least $200 more to the bill if an accountant is hired," said Richard Wolfish, a partner and certified public accountant at Gallagher Flynn and Co. in Burlington. (Burlington Free Press)

"Mexico City’s mayor says he will defend the capital’s gay-marriage law and insists the ordinance will take effect in March despite an appeal by federal prosecutors." (AP, cross-posted by Gay Marriage Watch)

"The Portuguese Constitutional Court has given its approval to a measure that will make same-sex marriage legal and would come into effect just ahead of a visit to the Portugal by Pope Benedict XVI." (Lez Get Real)

Related News

Restore Equality 2010 has failed to meet a required deadline to collect at least 700,000 petition signatures for an initiative that would repeal Prop. 8. (LGBT POV) "In the end, it turns out that we probably were a little smarter than those folks who decided to sit out," said Sean Bohac, San Diego coordinator for Restore Equality. "The polls that have been released lately indicate that the next time we go to the ballot, we’re going to repeal Prop. 8." (San Diego Union-Tribune)

"Marriage on Trial: Should the law limit marriage to a union between a man and a woman?" will be debated (on April 13th) at Providence College's '64 Hall at the Slavin Center. The debaters are constitutional law scholars Gerard V. Bradley and William Eskridge. (The Providence Journal) (04/21/10: BostonEdge reports on the debate.)

Maggie Gallagher, president of the National Organization for Marriage, "spoke to a full house at Franciscan University of Steubenville, [Ohio,] April 6, 2010, on "The Future of Marriage: Why (and How) Christians Must Engage the Same-Sex Marriage Debate."(press release, Franciscan University of Steubenville) Here is the audio recording.

Sunday, April 11, 2010

Appellants before the D.C. Court of Appeals seek to qualify the D.C. Marriage Initiative of 2009 for the ballot, after the D.C. Superior Court upheld a disqualification decision by the D.C. Elections and Ethics Board. The case is Jackson v. District of Columbia Bd. of Elections, Civ. No. 2009 CA 008613 B, slip.op. (D. C. Super., Jan. 14, 2010), petition for cert., Jan. 15, 2010, No. 10-CV-20 (D.C. Ct. App.) Chief Justice Roberts denied their emergency application to stay D.C.'s marriage equality law when, in a related lawsuit, they tried to overturn the Board's disqualification of a referendum on the law. Jackson v. District of Columbia Bd. of Elections, 559 U. S. ____ (2010) But Roberts said that plaintiffs will, "at the appropriate time," have the right to challenge any "adverse decision" in their "initiative" lawsuit. Oral argument has been scheduled for May 4th at 10 a.m. EST, and parties have been ordered to submit briefs. The Court hosts real-time recording of its oral arguments here.

In March, Judge Vaughn Walker uphelda discovery order in the Perry case that requires California Equality, the ACLU, and other "No on 8" organizations to provide Prop. 8 proponents certain types of campaign communications, even though the organizations are not parties in the case. These groups appealed Walker's ruling to the 9th Circuit, alleging that it violates their First Amendment protection of political speech and participation. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), a 9th Circuit panel overturned a discovery order that would have required Prop. 8 proponents to disclose internal campaign communications, other than those by "rank-and-file" members. The same panel has been assigned to this latest appeal, and ordered parties to file briefs by April 9th.

In their opening brief, appellants argue that the Court has "finality" jurisdiction to review their appeal now rather than wait for them to appeal it later, after Judge Walker effectively resolves the question of "finality" jurisdiction by citing them for violating the recent discovery order. Appellants also argue that, under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) and another precedent, the Court has mandamus jurisdiction because Judge Walker clearly erred when he sustained the discovery order: they allege that the required document production violates the First Amendment right of their members, and would chill political speech in future campaigns. "To cite but one obvious example, the district court’s holding that there is no constitutional protection at all for [private] communications between individuals working for different groups as part of a common and coordinated effort to achieve a particular political result is, we suggest, both wholly indefensible and vast in its implications for the conduct of future elections."

In their opening brief, Prop. 8 proponents seek clarification of a footnote in the panel's ruling on the scope of First Amendment protection from compelled disclosure of political speech and association. Footnote 12 states, in relevant part, that the panel's "holding [on the First Amendment privilege] is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Id. at 1165 n.12. Does this holding apply to individuals who formulated campaign strategy and messages, regardless of their status or importance to the campaign, and thus regardless of their membership in a "core" group? Proponents claim that it must under First Amendment jurisprudence:

"The First Amendment creates no castes. Its protection is not doled out based on some perceived rank within a political campaign or organization. Instead, the First Amendment protects the rank-and-file campaign volunteer no less than the campaign manager, the reticent or fleeting speaker no less than the campaign press secretary, the individual on a soapbox no less than the campaign executive committee."

Proponents have also filed a petition in the Supreme Court to test their interpretation of the holding in footnote 12. In their Supreme Court petition, they contend that footnote 12's "'core group' limitation runs afoul of the First Amendment." (at 12) The Supreme Court case is Hollingsworth v. Perry, No. 09-1210) Proponents asked the Supreme Court to hold the petition pending the outcome of the case brought by Equality California, ACLU, and other No on 8 groups.

If the 9th Circuit holding extends First Amendment protection to any individual who formulated campaign strategy and messages, then it bars the very "types of [private] documents and information that the district court has ordered both Proponents and Petitioners to disclose - confidential political speech shared among associates in a campaign" - whether or not they belong to a "core" group. Otherwise, Judge Walker has not clearly erred with respect to discovery orders in the case, and appellants must defer their appeal until Walker cites them for violating the latest discovery order.

Not surprisingly, the Perry plaintiffs do not want this appeal to succeed. They argue that Judges Walker and Spero have carefully followed the panel Court's instruction on First Amendment privilege when Spero crafted the latest discovery order. The Perry plaintiffs contend that the panel does not have jurisdiction to review the First Amendment claims of California Equality and the ACLU.

Thursday, April 8, 2010

Theodore Olson addressed a group of law students and answered their questions about the case. He said that the Supreme Court didn't tip its hand when it decided to disallow a televised broadcast of the trial. He appears to take it for granted that the case will ultimately reach the Supreme Court. The legal team will not target specific Supreme Court judges (like Anthony Kennedy!) for their arguments. He repeated his reasons for bringing the case last year rather than wait on an incremental strategy. He faulted the Prop. 8 proponents for failing to demonstrate any harm from marriage equality to the institution of marriage. And he told a reporter that the case "will affect the rest of the world." (The Blog of Legal Times)

Gill v. OPM

"On Thursday, May 6, 2010, the Federal District Court in Boston will hear oral arguments on the constitutionality of the federal Defense of Marriage Act (DOMA), in the case of Gill v. Office of Personnel Management, brought by GLAD in March 2009." (GLAD press release)

"The American Civil Liberties Union and the ACLU of Arkansas will ask a Pulaski County circut court to rule in its favor in its challege to Act One, a 2008 law that bans any unmarried person who lives with a partner from serving as an adopting foster parent in Arkansas." (KTHV, Little Rock, cross-posted by ADF Alliance Alert) The ACLU makes its selected filings available here, and the Alliance Defense Fund links its briefs to this press release. Lamda Legal also has a press release.

Divorce

"So why are we talking about a same-sex couple married in Massachusetts and now divorced in Texas? It's a new area of law and divorce attorneys in Chicago and all across the country likely are taking cues from this case and ones in other states." (Steven Tanner for the Chicago Family Law Blog)

Civil Unions

"Bill in NH" writes a powerful, eloquent reply to an article on civil unions legislation, which a state Pennslvania Representative recently introduced. Bill uses his experience to defend the legislation and marriage equality laws, like the one in Massachusetts that allowed him to marry his husband before he passed away. He describes how his marriage spared him the risks of many legal conflicts at a vulnerable time. He also describes the emotional and legal problems survivors still encounter even if they enjoy the protections of their status as spouses or civil-union partners.

Wednesday, April 7, 2010

Perry v. SchwarzennegerChad Griffin is President of the American Foundation For Equal Rights, the organization that funds representation of the Perry plaintiffs. On the cover of its May issue, The Adovocate features Griffin as a standout among "Forty Under 40." (LBGT POV)

Lewis v. Harris II

Do Lewis plaintiffs have compelling evidence that marriage inequality in New Jersey gravely harms same-sex couples and their children? A columnist for NewJersey.com dismisses the evidence: "What evidence? Emotional, unverified testimony by gay and lesbian couples that they had been denied rights to which they were entitled. Plus a report by the Legislature’s own Civil Union Review Commission ... Plainly put, the commission was stacked." (NewJersey.com)

Varnum v. Brien

"On Tuesday, April 13 at 7:30 p.m., Cornell will host Brad Clark, Campaign Director for One Iowa, and Kate and Trish Varnum, plaintiffs in this historic Supreme Court case." (Cornell College Press Release)

Domestic partnerships

“Western Kentucky University officials announced Friday that the school will begin offering health insurance to qualifying dependents — including domestic partners — of its employees, starting next year.” (Courier Journal, cross-posted by ADF Alliance Alert) Kentucky has a super-DOMA amendment. I cannot assess the odds of a legal challenge by the Alliance Defense Fund or a sister organization in the state, or the odds of a lawsuit's success.

Related News

A recent poll shows that a slim majority of Californians now support marriage equality (Los Angeles Times) "Registered voters younger than 30" support it by a margin of 3 to 1. Law professor John Culhane believes that support from younger Americans will ultimately transform public perception of same-sex marriage. (WordinEdgewise) Given strong opposition by Americans older than 64, Darrin Hurwitz, HRC Assistant General Counsel, agrees that it is "not difficult to see where public opinion is headed." (HRC Back Story)

California state legislators have advanced legislation to repeal an unenforced, 1950 law that classifies gays and lesbians as 'sexual deviants' and requires the state Department of Mental Health to conduct research on "deviations conducive to sex crimes against children." (ABC News) Hurwitz said that "[t]he existence of such a law, unnoticed by many, is a sharp reminder of where attitudes towards LGBT rights used to be and, notably, of the progress that has been made since then." He predicts that "[w]hile challenges certainly remain, eventually both the 1950 sex crimes law and the 2008 anti-marriage initiative will likely be ones for the history books in California. (HRC Back Story)

Monday, April 5, 2010

On March 22nd, Judge Walker granted an interim stay of his decision in Perry v. Schwarzenneger to uphold a discovery order by Magistrate Judge Joseph Spero . The discovery order requires Equality California and the ACLU - two of the "No on 8" groups - to produce documents that concern "arguments for or against Prop. 8," even though they are not parties to the case. Prop. 8 proponents argued that the documents may clarify the intent of those who voted for Prop. 8, and may reveal the extent of political power of gays and lesbians. Equality California and the ACLU claimed that the documents are not relevant; that a First Amendment privilege applies under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); and that document production would impose an undue burden on them. Judge Spero ruled that the First Amendment privilege does not apply to communications between Equality California and the ACLU, on the one hand, and certain other No on 8 organizations, on the other. He also found that the documents may contribute to a "mix of information" available to pro-8 voters. And he identified steps to ensure that document production would not impose an undue burden.

On March 25th, Equality California and the ACLU filed an emergency motion for a stay of Judge Walker's decision to sustain Spero's order, together with a motion for expedited appeal. The appeal has been assigned to the same panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). By April 9th, "parties shall file simultaneous briefs addressing solely the issues of whether this court has jurisdiction over this appeal and whether mandamus is appropriate."

Saturday, April 3, 2010

The San Francisco Daily Journal featured an article yesterday about Golinsky v. OPM, No. 10-0257 (N.D.Cal.) (John Roemer, Lawyer Hits Wall in Trying To Get Benefits For Gay Spouse; Obama Administration Staff Sympathizes With Cause But Say Their Hands Are Tied, San Francisco Daily J., Apr. 2, 2010, at 1.) The lawsuit names OPM Director John Berry, who is gay. The agency's general counsel, Elaine Kaplan, is a lesbian. Kaplan told the Daily Journal, "I get that people think it's ironic [for OPM to defend against Karen Golinksy's claim for enrollment of her wife in the federal employee medical insurance plan], but neither Director Berry nor I has the freedom to disregard the law, even though we may disagree with it." Another "irony": the Obama administration continues to block access to medical insurance for Golinksy's wife, even as President Obama just signed into law the largest expansion of medical insurance coverage for Americans since Medicare. Golinsky remains worried that her wife lacks medical insurance: "You hold your breath and pray that nothing goes awry. One bad illness or accident can leave a family devastated."

Lamda Legal Marriage Project Director Jennifer Pizer acknowledged progress by the Obama administration on policies that do not require an act of Congress. But she said that Obama's "lawyers here argue that the public interest is best served by reflexively asserting DOMA to block insurance for Golinsky's family, and to uphold a repugnant tradition of anti-gay discrimination." She also called OPM's position "a strange collection of misreadings and misapplications of federal law adding up to a disconnect."

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Varnum v. Brien- first anniversary

Kate and Trish Varnum were lead plaintiffs in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). They describe the lived experience of their marriage, their commitment to advocacy and their insecurity over out-of-state travel. (Iowa Independent) "It’s validation,” Trish [Varnum], 45, says grinning. “I finally have a word (marriage) to describe what our relationship is all about. I’m now equal to my brothers and sisters." (gazetteonline.com, Cedar Rapids) While Carolyn Jenison, executive director for One Iowa, said that Varnum was monumental, "I remember getting up Saturday, April 4, and walking down the street and nothing was different. People have continued to do what they've always done." The Daily Nonpareil reports on a gay couple who encountered neo-Nazis at a Council Bluffs courthouse as they sought their marriage license. "Shouting anti-gay slurs on bullhorns and holding signs with sentiments of the same ilk," the neo-Nazis subjected the couple to the Nazi salute and "Heil Hitler."

Iowa has become a wedding destination for same-sex couples in the Midwest. (AP) However, the Omaha World-Heraldclaims that same-sex couples have not married in Iowa in numbers predicted by The Williams Institute at UCLA. The claim remains open to question, because "Iowa does not require marriage license applicants to designate their sex on the forms that are filed with the state." Sen. Mike Gronstal, D-Council Bluffs, observed that a relatively low number of same-sex marriages in Iowa would mean that "a vast majority" of the married couples are Iowans who have benefited from the ruling. They are "people who live down the street,” Gronstal said. “They are our friends, neighbors and people who live in our communities, who pay taxes just like everybody else.” (Daily Nonpareil, Council Bluffs, Iowa)

Let Us Vote Iowa plans to target three of the Varnum Court judges who face a retention vote in the November election. The organization will also endorse state House and Senate candidates who oppose marriage equality. (The Hawk Eye) Gubernatorial candidate Rod Roberts has said that if elected he would do everything within his power to see that voters have opportunity to approve a constitutional amendment reversing Varnum. (Omaha World-Herald). Not to be outdone, another gubernatorial candidate, Bob Vander Plaats, would "will sign an executive order his first day in office halting the practice" of same-sex marriage. (Quad-City Times) Justin Uebelhor of One Iowa said that "(t)his is going to be a fight for the long haul, that the opposition here in Iowa is relentless. We're going to have a presence here for the next few years, making sure that our stories get told."(The Hawk Eye)

Civil unions legislation - Pennsylvania

Pennsylvania state Rep. Mark Cohen became the first state legislator to introduce a bill to establish civil unions. (As far as I can tell - without contacting Cohen's office - the bill has not been posted to the legislature's website.) His state has a DOMA (23 Pa.C.S.A. § 1704), but its constitution does not ban same-sex marriage, and another attempt to add a constitutional ban recently failed. State Senator Daylin Leach has championed marriage equality in the state legislature, having introduced SB 935 that would establish it. So why does Cohen prefer civil unions? "Civil unions are more attainable in a reasonable period of time than gay marriage is," Cohen said. "Civil unions don’t give gays the status of marriage, they’re not as good as marriage, but I think right now it’s a much more attainable goal." To increase support from legislators and the public, Cohen says that he will, if necessary, continue to re-introduce his legislation. Leach supports Cohen's undertaking, as it represents "incremental progress." But Leach believes - with overwhelming evidence - that civil unions institutionalize "second class citizenship," and that they can not embody "the final resolution of the issue." (Philadelphia Gay News, cross-posted by Gay Marriage Watch)

Is incremental progress better than no progress? I have suggested that it is, but my tentative suggestion requires qualification. Incremental progress should not come at the cost of stalling progress toward marriage equality, and it should reflect only a temporary concession to the need for changing recalcitrant public opinion. These qualifications, of course, may beg the question. Given that same-sex couples and their children suffer grave harms from marriage inequality, demanding marriage equality as the only remedy may have more long-term impact on public opinion than advocating civil unions as an allegedly necessary expedient. At any rate, I am ambivalent about the idea of starting with an unacceptably flawed substitute, and using it to advance the ultimate goal of marriage equality.

Thursday, April 1, 2010

On the eve of the first anniversary of Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), Iowa Gov. Chet Culver praised the state legislature for not adopting a proposed amendment intended to reverse the ruling (HJR 2001). Although he personally opposes same-sex marriage, he said that "[w]e stood firm for the civil rights of every Iowan by saying loudly and clearly that any and all efforts to add discriminatory amendments to our state constitution have no place in our state constitution." (Sioux City Journal / Des Moines Register) Culver faces a "tough re-election fight" against three Republican candidates who favor an amendment. One of the candidates, Rod Roberts, supports a recall of three judges on the Varnum court when voters decide on their retention next year.

Tomorrow the University of Iowa will host a panel to "to commemorate the one-year anniversary of Varnum v. Brien." (Iowa One) Panelists include Camilla Taylor, "a Senior Staff Attorney in Lambda's Midwest Regional Office and ... architect of the couples' case." On April 10th, Drake University will mark the anniversary with a symposium, "The Same-Sex Marriage Divide." (Legal Scholarship Blog / Examiner.com)

Evan Wolfson observes that "the milestone marks yet another moment in the marriage movement when critics said we couldn't - but we did." (Huffington Post)

"A judge in Travis County declined Wednesday to consider Texas Attorney General Greg Abbott's request to intervene in the county's first same-sex divorce case, letting stand the judge's February decision to grant a divorce to two women who had been married in another state." (Houston Chronicle / FindLaw.com)